There are lots of patents out there claiming basic Internet functionalities or business practices, but some of them occasionally hit a nerve. That's what happened with the so-called "podcasting patent," a patent on "episodic content" owned by a company called Personal Audio LLC.

That company says that inventor Jim Logan's cassettes-by-mail business, which flopped in 1998, entitles him to a payment from every modern podcaster. Logan also has a patent on organizing playlists, which he has used to sue MP3 makers—including Samsung, which recently paid an undisclosed amount.

Personal Audio has lodged cash demands against podcasters big and small. The company sued CBS, NBC, Fox, and the HowStuffWorks podcast, and has threatened others. That led the Electronic Frontier Foundation to denounce the patent earlier this year. If it could raise $30,000, EFF promised to file a petition attacking the patent at the US Patent and Trademark Office.

It blew that target out of the water, raising $76,160. Yesterday, EFF filed the petition.

"Personal Audio is not the true inventor of this technology and should not be demanding a payout from today's podcasters," said EFF lawyer Daniel Nazer. "If you look into the history of podcasting, you won't see anything about Personal Audio."

The EFF petition cites an early Internet radio show by Carl Malamud called "Geek of the Week," as well as online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC), as three examples of "episodic content" that came before Personal Audio's priority date of 1996.

Malamud's "Geek of the Week" Internet radio shows were distributed back in 1993 and written about in The New York Times, The Wall Street Journal, and The Washington Post, EFF notes in its petition. That should put to rest Personal Audio's audacious claim that it “invented what is now commonly called podcasting back in 1996."

Personal Audio also claims the novelty of its invention comes from use of a "compilation file" at a particular URL that is updated when new content is available. But the EFF petition describes how a similar process was used by predecessor online services at CNN and elsewhere.

Abolish software patents and business process patents because both are about implementing a procedure not about a novel, physical process. Procedures have been in use for decades and it is very difficult to determine the "prior art" and when it was first used. Often the process existed for many years if not decades before it became well known or implemented in software.

Abolish software patents and business process patents because both are about implementing a procedure not about a novel, physical process. Procedures have been in use for decades and it is very difficult to determine the "prior art" and when it was first used. Often the process existed for many years if not decades before it became well known or implemented in software.

Can software patents be made in FRAND ones?

If we restrict ourselves to the article, why should these guys get any money from something that shouldn't have been patented in the first place?

On a wider scale, I see your point, but unfortunately don't know jack about patent law.

EFF are like the parent doing a child's (the Patent office) homework for them.

How about at the patent office they don't grant ANY patents until proper due diligence is done, rather than letting businesses abuse patents until that time because they're short on funds/resources, or whatever the excuse.

Is it that Personal Audio is claiming that their physical snail mail-order system of physical play-listed tapes constitutes prior art to the digital podcast?

Seems that, on the face of it, physically mailing tapes containing groups of songs pales in comparison to the ancient use of radio to broadcast interviews, talkback shows and music playlists. Wouldn't the widespread use of radio constitute far more significant prior art?

If not then we seem to be missing some critical piece of information about this patent fight.

So.... wait. Episodic content, organized into a playlist, aggregated at a link, and delivered to people automatically.

How is this not describing an audio book of the month club, or *shudder* record of the month clubs? Or even the "Time Life Greatest Kazoo Orchestral Series of Whizbang Mishraki!" series, where you sign up and the albums/tapes... keep... coming...

Oh, yeah, I forgot. "A system or method of..." and "... on the internet."

The USPTO is such a joke it makes me cry each time I realize the kind of patents they allowed to go through. These people have made more damage to the US electronic economy than any foreign state could ever hope to achieve.

The USPTO is such a joke it makes me cry each time I realize the kind of patents they allowed to go through. These people have made more damage to the US electronic economy than any foreign state could ever hope to achieve.

Maybe it's a terrorist plot against the US economy! They sure as hell are effective with it.Hmmm, software patents as weapons of terrorism, that should get something going to get rid of them

And now I probably show up in NSA's records just for mentioning the T word.

EFF are like the parent doing a child's (the Patent office) homework for them.

i know close to nothing about patent law, but it seems like so many of these patents on which trolls rely are re-issues (sometimes nearly word for word) of previous patents or established practices.

Shouldn't the patent office be held to some minimum standard of 'uniqueness' when they issue allegedly 'new' patents?

i always think of the fact that Albert Einstein worked in a patent office (Swiss, i think) in order to keep abreast of new developments in science and technology... Maybe when he left that job, all the patent offices in the developed world decided: 'Well, we lost our only good guy.... Forget it, let's just grant every single patent application and let the lawyers duke it out...'

Fucking trolls. There is nothing novel or non obvious about "what if we sent audio via an rss feed?" "Podcasting" should never have been patentable.

I have to agree with this. Why are these things patentable in the first place?

The cassette thing uses vastly different technology from podcasts, so why is this not a patent on an idea? dressed up to look like something more than that? Whatever happened to only being able to patent specific implementations of an idea (i.e the invention)?

This is the same problem I have with things like slide to unlock patents. The idea might be creative, but it's not inventive. And given the hardware implementing the idea is hardly creative and definately not inventive. It is in fact completely straight foward for anyone that can program.

The same is true for any and all patents on UI elements. Thinking up a UI element is not inventing and implementing it is trivial for a programmer as long as the hardware supports it. Pinch to zoom? Same story, The step from idea to implementation is trivial for any decent programmer. The only problem might be if you have no multi touch screen. But then the invention is the multi touch screen, not the trivial implementation of pinch to zoom.

Put all these trivial elements together in a consistent UI and I will allow that it is a creative work worthy of a copyright. But software patents are just wrong by their very nature of never requiring any invention ever.

Fucking trolls. There is nothing novel or non obvious about "what if we sent audio via an rss feed?" "Podcasting" should never have been patentable.

I have to agree with this. Why are these things patentable in the first place?

The cassette thing uses vastly different technology from podcasts, so why is this not a patent on an idea? dressed up to look like something more than that? Whatever happened to only being able to patent specific implementations of an idea (i.e the invention)?

This is the same problem I have with things like slide to unlock patents. The idea might be creative, but it's not inventive. And given the hardware implementing the idea is hardly creative and definately not inventive. It is in fact completely straight foward for anyone that can program.

The same is true for any and all patents on UI elements. Thinking up a UI element is not inventing and implementing it is trivial for a programmer as long as the hardware supports it. Pinch to zoom? Same story, The step from idea to implementation is trivial for any decent programmer. The only problem might be if you have no multi touch screen. But then the invention is the multi touch screen, not the trivial implementation of pinch to zoom.

Put all these trivial elements together in a consistent UI and I will allow that it is a creative work worthy of a copyright. But software patents are just wrong by their very nature of never requiring any invention ever.

Well most of the physical inventions out there can be said to be a composition of simple parts, e.g. the screw, plane, cylinder, etc. themselves unpatentable.

Come now. The reason the patent office grants so many patents is because this is all that is left of the American Economy.

Very few factories or industries in the country itself, all that has been outsourced elsewhere.

Remember the fuss the OECD countries made about the shift to the knowledge based economies.

Well, this is what it looks like. Where every little trivial idea is protected by the government and army of lawyers.

I don't assume this is what they planned to happen, it's just what has happened when a country outsources all its manufacturing skills to other countries. The only thing it has left are "ideas", and without the framework of Patents and Copyright, America and other OECD countries would be bankrupt.

I'm not saying this is right, just how it is.

It truly is pathetic in my opinion. It's like saying the country is well protected because we have the best ideas for the best weapons, when the factories making those weapons are in your enemies country. Tell the people it's ok, we won't be invaded because weve sent a lawyer over to tell them of an import ban because the way the tank turret moves has a patent on it.

Fucking trolls. There is nothing novel or non obvious about "what if we sent audio via an rss feed?" "Podcasting" should never have been patentable.

I have to agree with this. Why are these things patentable in the first place?

The cassette thing uses vastly different technology from podcasts, so why is this not a patent on an idea? dressed up to look like something more than that? Whatever happened to only being able to patent specific implementations of an idea (i.e the invention)?

This is the same problem I have with things like slide to unlock patents. The idea might be creative, but it's not inventive. And given the hardware implementing the idea is hardly creative and definately not inventive. It is in fact completely straight foward for anyone that can program.

The same is true for any and all patents on UI elements. Thinking up a UI element is not inventing and implementing it is trivial for a programmer as long as the hardware supports it. Pinch to zoom? Same story, The step from idea to implementation is trivial for any decent programmer. The only problem might be if you have no multi touch screen. But then the invention is the multi touch screen, not the trivial implementation of pinch to zoom.

Put all these trivial elements together in a consistent UI and I will allow that it is a creative work worthy of a copyright. But software patents are just wrong by their very nature of never requiring any invention ever.

Well most of the physical inventions out there can be said to be a composition of simple parts, e.g. the screw, plane, cylinder, etc. themselves unpatentable.

Yes... But the patents for physical inventions usually don't cover - nail half or fully driven by a hammer into a material.

EFF are like the parent doing a child's (the Patent office) homework for them.

How about at the patent office they don't grant ANY patents until proper due diligence is done, rather than letting businesses abuse patents until that time because they're short on funds/resources, or whatever the excuse.

Since the patent office needs to fund itself via approving and reviewing patents. How about this novel idea? Every patent overturned also results in a fiscal penalty for the patent office, not some boon for reviews for dollars. Make there be some incentive to truly review patents for obviousness and whatnot, as they should have been doing all along. Else the USPTO risk falling into a financial hole, like so many good companies that have fallen victim to patent trolling due to piss poor patent reviews at the USPTO.

Podcasting? Let's call it what it really is - a RADIO SHOW. Existed since oh, around nineteen-friggin-hundred, give or take.

This whole business of patenting stuff that already exists, I'm amazed it's even allowed. I'm doing X, where X is a well-established process or method...but ON THE INTERNET, and wham, suddenly it counts as something novel? Get the F outta here.

People who try to patent stuff like that should get a beating, and well... Patent clerks who grant patents like that, they should get a beating too! (I'm only half joking, mind you.)

I'm glad the EFF stepped in but from the article it sounds like they waited till some bigger companies got sued before they stepped up. Why weren't they fighting for the little guys who were getting sued. Its not like the companies paid the EFF since they did a fund raiser.

If you're not writing your representatives in the house and senate threatening to help oust them from their well worn and corporate paid for seats then you don't have any right to bitch. The only way a law will change is if they change it and the only way to get them to listen to you is to start voting them out. Untill then you're wasting your keystrokes and/or breath.

I'm glad the EFF stepped in but from the article it sounds like they waited till some bigger companies got sued before they stepped up. Why weren't they fighting for the little guys who were getting sued. Its not like the companies paid the EFF since they did a fund raiser.

The EFF has to spend their limited resources effectively. I assume they thought the bigger companies could afford their own legal council, but probably would have sent an emeritus brief had it gone to court.

I've said this in other patent threads, but it's not really fair for commenters to only read the high-level summary of the patent provided by the article, then complain that the patent is too high level (overly broad). Also, while I'm quite ready to believe that the USTPO granted a patent that it shouldn't have, it's still important to distinguish between what the patent actually covers vs what the troll is claiming it covers.

Since the patent office needs to fund itself via approving and reviewing patents. How about this novel idea? Every patent overturned also results in a fiscal penalty for the patent office, not some boon for reviews for dollars. Make there be some incentive to truly review patents for obviousness and whatnot, as they should have been doing all along. Else the USPTO risk falling into a financial hole, like so many good companies that have fallen victim to patent trolling due to piss poor patent reviews at the USPTO.

Not quite good enough. Said penalty shall be applied directly to the paychecks of the top 2 or 3 tiers of the people running the agency, NOT to the rank and file who pretty much follow their orders with the resources they are given.

EFF are like the parent doing a child's (the Patent office) homework for them.

How about at the patent office they don't grant ANY patents until proper due diligence is done, rather than letting businesses abuse patents until that time because they're short on funds/resources, or whatever the excuse.

Because they don't have the budget. If they tried to do that, and you filed a new patent application tomorrow, you probably wouldn't hear back on the patent until the next decade if you're lucky, the next century if you're not.

The USPTO is such a joke it makes me cry each time I realize the kind of patents they allowed to go through. These people have made more damage to the US electronic economy than any foreign state could ever hope to achieve.

I wonder if there has ever been a serious audit of USPTO patent granting process? Sounds like we are due for one to uncover everything from how they research prior art to potential conflicts of interests by "examiners".

The transparency is completely justified because Courts presume their determinations to be the gospel truth. The effort is worth organizing with kick starter funding. I would do it, alas, there is only 25 hours in my day.

Because they don't have the budget. If they tried to do that, and you filed a new patent application tomorrow, you probably wouldn't hear back on the patent until the next decade if you're lucky, the next century if you're not.

Because they don't have the budget. If they tried to do that, and you filed a new patent application tomorrow, you probably wouldn't hear back on the patent until the next decade if you're lucky, the next century if you're not.

I'm not sure I see that as a bad thing. If it did suddenly become the case that granting a patent took significantly more time than it used to, then that would likely also significantly drop the number of filings to only the ones that had merit to begin with, rather than the current strategy which appears to consist of "patent anything that moves", for lack of a better way of phrasing it.

Have an old beater of a car/truck sitting around that you don't need or are about to replace? Something that still works, but has definitely seen its better days? Did you know that EFF will gladly take it off your hands, convert it to cash, and then put that cash to hard work fighting for causes that YOU believe in? And they make it so easy. It's even tax deductible. Something to think about. Here's a link to get you started ...

1. A media player for acquiring and reproducing media program files which represent episodes in a series of episodes as said episodes become available, said media player comprising:

a digital memory,

a communications port coupled to the Internet for transmitting data requests for data identified by specified URLs, for receiving downloaded data identified by said URLs in response to said requests, and for storing said downloaded data in said digital memory,

a processor coupled to said digital memory and to said communications port for performing a sequence of timed update operations, each of said update operations comprising:

downloading via the Internet the current version of a compilation file identified by a predetermined URL and storing said current version of said compilation file in said digital memory, said current version of said compilation file containing attribute data describing one or more episodes of a series of episodes, said attribute data for each given one of said episodes including one or more episode URLs identifying one or more corresponding media files representing said given one of said episodes,

processing the content of said current version of said compilation file to identify attribute data describing one or more newly available episodes in said series of episodes which were not described by attribute data found in a prior version of said compilation file previously identified by said predetermined URL and previously downloaded by an earlier one of said sequence of timed update operations, and

downloading one or more new media files identified by one or more URLs in the attribute data describing said one or more newly available episodes and storing said one or more new media files in said digital memory, and

an output unit for reproducing one or more of the media files representing episodes in said series at the request of the operator of said media player.

If applied for today, in view of more recent case law, I'd imagine the Examiner would be able to say something along the lines of "This is not a novel device or process and 'doing it on the Internet' does not make it new or not-obvious."

This is an example of taking a broad idea and framing it in enough physical structure so as to give the impression to the Examiner that there are real limitations on the scope of the claims, but in practice, those elements are common and necessary elements which do not carry any meaningful limitations. Note how the claim starts off as being directed to "a media player" which one would imagine is a physical device but then gets into "a processor ... for performing a sequence of timed update operations" making the real thrust of the claim toward the process (and thus toward the general idea) of downloading a media file.

The question for the Examiner who granted this was: Were each of those elements, physical or process, known in the field of art in Oct. 2, 1996 when the original application (from which this patent claims priority) was filed?

1. A media player for acquiring and reproducing media program files which represent episodes in a series of episodes as said episodes become available, said media player comprising:

....

The question for the Examiner who granted this was: Were each of those elements, physical or process, known in the field of art in Oct. 2, 1996 when the original application (from which this patent claims priority) was filed?

At the time, I think the whole thing could have been implemented by some students as a shell or Perl script. That's not a patentable invention. That's a homework assignment for underclassmen.

EFF are like the parent doing a child's (the Patent office) homework for them.

How about at the patent office they don't grant ANY patents until proper due diligence is done, rather than letting businesses abuse patents until that time because they're short on funds/resources, or whatever the excuse.

In principle, I agree with you. But let me play Devil's advocate for a moment: given that the USPTO is short on people, particularly people with the right skills, due to Congress not funding them sufficiently, they basically have two choices: do a great job on everything, and take forever; or "keep up" by frequently doing a poor job of evaluating patents. How would you feel if you had filed a patent a decade (or more) ago, a competitor was clearly infringing on it and had been for years, and this was significantly hurting your business, and you were still waiting for the patent to be granted?

Yes, the right solution is a combo of due diligence before granting, making it possible to challenge patents without having to infringe them first, better funding for the USPTO, and reforming exactly what can get a patent in the first place. But, in the meantime, what is the least-bad option for the USPTO? I'm not saying what they're doing is it--but it's not clear to me that this isn't the least-bad solution, either.

Or:"Hey, my poem makes the reader feel extremely morose about the future of society. So any poem that also makes the reader feel extremely morose about the future of society is infringing my creative ownership. But the other poet used different words, so my copyright is useless in stopping it. We need to fix copyright to stop those infringing poems."